Incoherent ‘inherent requirement’ test

Two months ago I sat in a packed room where Mr Tim Wilson MP and Rev Dr Michael Bird addressed the topic, ‘Freedom of Speech in Australia today’. During the conversation Mike Bird said that the next issue facing Victorians will be in relation to religious schools and discrimination policies. This week my non-prophetic friend was proven to be right: the Victorian Government announced that it will reintroduce the ‘inherent requirement’ test, impacting whom religious organisations may and may not employ.

The test was originally introduced by the previous Labor Government in 2010, but was removed in 2011 by the Coalition Government.

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This explanation is offered on the Premier’s website:

“The test was scrapped by the former Coalition Government in 2011, which left many Victorians vulnerable to discrimination when seeking employment with religious bodies or schools, particularly because of their sexual orientation or gender identity.

The inherent requirements test will limit the ability of a religious body or school to rely on a religious defence to discriminate in the area of employment because of a person’s sex, sexual orientation, gender identity, marital status or differing religious beliefs.

The defence will be limited to circumstances where religious beliefs are an inherent requirement of a job, and an employee or job applicant does not meet the requirement because of a specific personal attribute.

The test will not force religious bodies or schools to employ people with attributes that conflict with its religious beliefs and principles. However, it will require them to demonstrate a necessary connection between their religious beliefs and the requirements of a specific role.”

This latest move from the Victorian Government is disturbing, although not surprising. I appreciate and at times laud the Government’s move to ensure particular social minority groups are protected, including LGBTI people. But one may be forgiven for concluding that some of the extreme measures have less to do with the principle of inclusion, and more about exclusion.

For example, removing SRI from schools had nothing to do with advocating sexual equality. Indeed, the list of anti-religious of measures is growing, and one can only wonder where and if Mr Andrews’ will draw the line. Over the last two years many Victorian families have come to feel as though they are being pushed away from public schools, and now it appears as though the same Government is set on invading the religious school space also, and that of any religious organisation. It is yet unclear whether Churches will be protected from this test or not.

The inherent requirement test is a deeply flawed concept:

First, the notion of ‘inherent requirement’ depends upon imposing a secularist view of religion. The test presumes a separation between what is considered spiritual work and what is not. It is surmising, for example, that a gardener or an office administrator is not doing specifically Christian work because they are not teaching the Bible, etc. This is a false dichotomy that does not exist in Christian faith, nor in many other religions. Every role is an expression of commitment to God and is a valuable part of the whole which serves a common purpose.

Second, this test wrongly assumes that because a particular role does not have a direct theological or spiritual teaching component, it therefore does not matter whether the employee agrees with the organisation’s ethos, beliefs, and vision. This is purely illogical. Why would any organisation or company employ a person who does not support the basic values and vision of that association?

Equal Opportunity doesn’t mean sameness. I’m not doubting the Victorian Government’s commitment to ‘equal opportunity’, but their paradigm of equal opportunity is flawed, and represents an ethic that is not ultimately about diversity, but about conformity.

During that cold July night when Michael Bird pre-empted Mr Andrews’ announcement this week, Tim Wilson offered an idea which deserves consideration as the Victorian Parliament wrestles with this legislation. Mr Wilson believes that the question of whom religious organisations employ is better dealt with through contracts rather than through law. He said,

“In terms of hiring and firing people, I don’t think it’s best dealt with through law. I fully accept that religious institutions have a right to preserve the environment and the value systems of people who embody those value systems.”

“It is the right of children and parents, to raise their children in the culture, traditions and customs to which they hold dear.”

Finally, the question needs to be asked, is it reasonable for a Government to determine what constitutes required religious adherence or not? Is it the Government’s role to dictate theology and ministry practice? Does the Government have the necessary skills and knowledge required to adequately understand theology and therefore make the right judgement regarding the question of what is inherent?

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6 thoughts on “Incoherent ‘inherent requirement’ test

  1. As a New South Welshman a bit unfamiliar with laws South of the border, may I ask, were there many (any?) actual incidents of such institutions undertaking and failing this test before it was repealed in 2011? The wording makes it sound like this is really just adding paperwork while the institutions otherwise keep doing what they’re doing. If so, that’s just a time-waster policy.

    As someone who worked in a supporting department of a large Christian non-profit, I got to see every level of the organisation. The “false dichotomy” you refer to was in fact very much the reality in that workplace. My role was certainly not an expression of commitment to any religious belief. For other institutions, it’s going to be true or false on a case-by-case basis. Perhaps the Andrews government has seen institutions like mine and assumed all others are the same?

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    • Thanks Chris.
      The law was removed before the ink ever dried, so to speak. So it was never tried, to my knowledge.
      I agree, are they to solve a problem that doesn’t really exist, and if it does, it is a rare circumstance.

      I understand that there are contexts where religious organisations may employ people who are not from the faith, and that’s fine. They have made that decision, not the Govt.

      Theologically, the false dichotomy is real and is important in many contexts. The issue is, it should be up to the organisation to determined such things, not the Govt who are ill-equipped to do the work of theo-praxis.

      I can’t speak by the Andrews’ Govt as to what they have and have not seen, or thought they had seen. Maybe they have made assumptions, but put in the context of numerous other policies that are target religious beliefs & organisations, it is not unreasonable to wonder what the agenda is.

      As stands, the test is an example of overreach & unnecessary intrusion.

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  2. Pingback: Victorian challenge to religious freedom of faith-based organisations | Law and Religion Australia

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